CHARLES ARNOLD, PETITIONER V. UNITED STATES OF AMERICA
No. 87-832
In the Supreme Court of the United States
October Term, 1987
On Petition for a Writ of Certiorari to the United States Court of
Military Appeals
Brief for the United States in Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the Court of Military Appeals (Pet. App. 1a-12a) is
reported at 25 M.J. 129. The opinion of the Army Court of Military
Review (Pet. App. 13a-16a) is reported at 18 M.J. 559.
JURISDICTION
The judgment of the Court of Military Appeals was entered on
September 30, 1987. The petition for a writ of certiorari was filed
on November 23, 1987. The jurisdiction of this Court is invoked under
28 U.S.C. (Supp. III) 1259(3).
QUESTION PRESENTED
Whether the admission as an excited utterance of statements made by
petitioner's daughter to her school counselor violated the
Confrontation Clause of the Sixth Amendment.
STATEMENT
Petitioner, a member of the United States Army, was tried by a
general court-martial at Mannheim in the Federal Republic of Germany.
He was convicted of taking indecent liberties with and committing
indecent acts upon his daughter, a child under the age of 16, in
violation of Article 134 of the Uniform Code of Military Justice
(UCMJ), 10 U.S.C. 934. He was sentenced to confinement for five
years, forfeiture of his pay, a reduction in rank, and a bad conduct
discharge. The convening authority reduced the period of confinement
to three years, but otherwise approved the findings and sentence. The
Army Court of Military Review affirmed the findings and sentence (Pet.
App. 13a-16a). The Court of Military Appeals affirmed (id. at
1a-12a).
1. On November 13, 1981, petitioner orally confessed to having
sexually molested his teenage daughter, Charise. He also provided a
written, sworn, and signed confession to an agent of the Army's
Criminal Investigation Division (CID) (GX 4; Tr. 200-202).
Petitioner admitted that he had entered his daughter's bedroom on the
night of November 5, intending to teach her about sex and to have
sexual intercourse with her (ibid.). He acknowledged that he had
rubbed her thigh with his hand and pulled his penis from his trousers,
but he said that he left the room when his daughter started to cry and
just before his wife got out of the shower. Petitioner also explained
that, a short time after he went to bed, he heard Charise crying, he
put his clothes on, and he went to check on her. According to
petitioner, his oldest son was standing by his bedroom door and said
that he heard Charise crying. Petitioner said that he re-entered
Charise's bedroom; she said that nothing was wrong, and petitioner
returned to his bed. /1/
To corroborate petitioner's confession, /2/ the government
introduced statements made by his daughter to her school counselor, to
a nurse, and to a CID agent on the morning after the assault. At the
first opportunity on the morning after the assault, Charise contacted
her school counselor and attempted to speak with him. According to
the counselor, Charise was "very, very agitated" at that time, and her
physical and emotional appearance was very different from what it
normally was. Charise was normally "very bubbly," but that morning
she seemed agitated and "very, very subdued" (Tr. 152; Pet. App. 3a).
Charise went on to her first two classes and then returned to the
counselor's office. She was very quiet and subdued. Her first words
to the counselor were, "Is the father supposed to be the first one to
have sex with you?" The counselor asked, "Why are you asking this?"
That question, he testified, "just opened the gate" (Tr. 152-153).
The counselor said that, without leading questions or prompting,
Charise broke into tears and poured out the details of her father's
assault (Tr. 155; Pet. App. 3a).
Charise told the counselor that, on the previous night, petitioner
accosted her in the kitchen of their home by fondling her pubic area
(Tr. 153-154). Charise asked what was going on, and petitioner
responded, "I just wanted to check out your reaction with boys" (Tr.
154). Later that night, petitioner entered Charise's bedroom after
she had gone to bed. Petitioner told her to remove her underpants,
and she obeyed. He then left the room because his wife was apparently
just getting out of the shower. He instructed his daughter to leave
her underpants off (Tr. 154-155, 170). Petitioner returned to his
daughter's bedroom later, removed his penis from his pants, got on top
of her, and attempted to have sexual intercourse with her. He told
her that a father was supposed to be the first one to have sex with
his daughter (Tr. 156-157). A noise from his wife's room caused
petitioner to leave Charise's room. Before leaving, however,
petitioner warned Charise that she was not to tell anyone about what
he had done, and he reminded her that he had a gun (Tr. 157). Charise
was crying as her father left (Tr. 156-157).
After Charise related the events of the previous evening, she was
asked to repeat her story to the school nurse. Later that day,
Charise gave a consistent sworn statement to a CID agent (GX 5).
Charise recanted that statement on December 22 (GX 6). /3/
2. At trial, Charise's statement to the school counselor, the
nurse, and the CID agent were offered in evidence to corroborate
petitioner's confession. Over objections, the trial judge admitted
the statements to the school counselor and to the nurse under Mil. R.
Evid. 803(2) as excited utterances (Tr. 107). /4/ Also over
objection, the trial judge admitted Charise's statement to the CID
agent under Mil. R. Evid. 803(24), the residual hearsay exception (Tr.
188-189, 192). Charise did not testify for the prosecution, nor did
petitioner call her to disclaim the truth of any of her statements.
3. The Army Court of Military Review affirmed (Pet. App. 13a-16a).
The court held that Charise's statements to her school counselor were
properly admitted as excited utterances (id. at 14a). The court also
held that it was error for the trial judge to admit the statements
Charise made to the school nurse and to the CID agent, but that,
because those statements were cumulative, the error was harmless (id.
at 14a-16a).
4. The Court of Military Appeals affirmed by a divided vote (Pet.
App. 7a). In an opinion announcing the judgment of the court, Judge
Cox concluded that Charise's unsolicited and spontaneious statements
to her school counselor while she was "very, very agitated" and "under
the threat of being shot by her father" constituted excited utterances
(id. at 6a-9a). Judge Cox added that, as a long-established and
well-recognized exception to the hearsay rules, the exception for
excited utterances is so firmly rooted that statements introduced
under that exception are sufficiently reliable to satisfy the
Confrontation Clause even in the absence of cross-examination of the
declarant (id. at 7a). Under such circumstances, he concluded, the
proponent of the evidence need not show that the witness is
unavailable to testify at trial (ibid.). Judge Sullivan concurred in
the judgment (id. at 8a-9a). He stated that petitioner's confession
was sufficiently corroborated by other circumstantial evidence so that
his conviction could be affirmed without addressing the admissibility
of Charise's excited utterances (id. at 8a). Judge Sullivan also
concluded, however, that Charise's statements to her school counselor
constituted excited utterances under Mil. R. Evid. 803(2) because of
her father's threats (Pet. App. 8a). Chief Judge Everett dissented.
In his view, Charise's statements to the school counselor were not
excited utterances, because of the delay between the time of the
incident and the time that she made the statements (id. at 9a-11a).
ARGUMENT
Petitioner claims that his daughter's statements to her school
counselor were admitted into evidence in violation of the
Confrontation Clause of the Sixth Amendment. Petitioner's claim,
however, is quite narrow. Petitioner does not maintain that his
daughter's statements were not excited utterances, /5/ nor does he
contend that excited utterances do not fit within a firmly-rooted
exception to the hearsay rule. /6/ Instead, petitioner argues that
his daughter's statements should not have been admitted, because the
government failed to show that she was unavailable to testify at trial
and because her statements were not sufficiently reliable. Neither
claim has merit.
1. Although petitioner now contends that the government should have
been required to prove that his daughter was unavailable to testify at
trial before the trial court admitted Charise's statements to her
school counselor, petitioner did not object to the admission of her
statements on that ground. Moreover, on the morning of trial the
prosecutor represented to the court that he could not find Charise,
who was living at home at the time, even after having two other
government witnesses (the school counselor and nurse) look for her at
home and at school (Tr. 102; see also Tr. 142-144). Thus, the record
suggests that Charise was in fact unavailable to testify, and if
petitioner had objected to her testimony on the ground that she was
available, the court would have been justified in making a finding of
unavailability. In any event, the government was not required to
prove that Charise was unavailable before her statements to her school
counselor could be admitted at trial.
Petitioner relies (Pet. 6) on Ohio v. Roberts, 448 U.S. 56 (1980),
as support for his claim that the government should have been required
to prove that his daughter was unavailable. Roberts, however, does
not require proof of the declarant's availability as a prerequisite to
the admission of every out-of-court statement. Roberts involved the
question whether the admission at trial of testimony given at a
preliminary hearing violated the Confrontation Clause, and the cases
cited and discussed in the Court's opinion involved the introduction
at trial of testimony given at a prior judicial proceeding. 448 U.S.
at 65, 74. The statement in Roberts on which petitioner relies (Pet.
6, quoting Roberts, 448 U.S. at 66) -- that an out-of-court statement
is inadmissible unless the declarant is shown to be unavailable --
must be read in light of the facts of that case. As this Court
subsequently explained in United States v. Inadi, 475 U.S. 387, 394
(1986) (citations and footnote omitted), "Roberts simply reaffirmed a
longstanding rule * * * that applies unavailability analysis to prior
testimony. Roberts cannot fairly be read to stand for the radical
proposition that no out-of-court statement can be introduced by the
government without a showing that the declarant is unavailable."
Although petitioner claims that Inadi stands only for the
proposition that co-conspirator declarations can be introduced without
the need to show that the declarant is unavailable, the rationale of
Inadi is broader than that. The Court in Inadi distinguished prior
testimony -- which requires a showing of unavailability -- from other
kinds of testimony, not just from co-conspirator declarations. While
former testimony "often is only a weaker substitute for live
testimony," the Court explained, other exceptions to the hearsay rule
have "independent evidentiary significance of (their) own" (475 U.S.
at 394).
That analysis applies to excited utterances. Like a
co-conspirator's declaration, an excited utterance "often will derive
its significance from the circumstances in which it was made." Inadi,
475 U.S. at 395. As in the case of a co-conspirator declaration, an
excited utterance may be even more reliable than subsequent in-court
testimony, because the relationship between the parties at the time of
trial may significantly affect the reliability of the evidence the
declarant gives from the stand. Thus, like co-conspirator
declarations, excited utterances "derive much of their value from the
fact that they are made in a context very different from trial, and
therefore are usually irreplaceable as substantive evidence." 475 U.S.
at 395-396.
Concerns over reliability do not justify requiring the government
to prove that a declarant is unavailable before the trial court may
admit excited utterances. The primary function of the Confrontation
Clause is to enhance the reliability of the factfinding process at
trial. /7/ The historical process of defining exceptions to the
hearsay rule has identified classes of out-of-court statements that
are particularly reliable. For that reason, the Court has explained
that "(r)eliability can be inferred without more in a case where the
evidence falls within a firmly rooted hearsay exception." Roberts, 448
U.S. at 66.
Excited utterances have historically been admissible as exceptions
to the hearsay rule, because they are made under circumstances
indicating that they are sincere and are ordinarily made before a
person develops a motive to fabricate. See C. McCormick, Handbook of
the Law of Evidence Section 297, at 704 (E. Cleary ed. 1972). For
those reasons, excited utterances carry sufficient guarantees of
reliability that the additional safeguard of cross-examination is not
constitutionally required. Excited utterances are admissible without
a showing of unavailability, not because the Confrontation Clause is
"a mere codification of the rules of hearsay," but because an excited
utterance is one example of the situation where "the overlap is
complete" between the constitutional provision and the hearsay rules
(California v. Green, 339 U.S. 149, 155 (1970)), and cross-examination
is not necessary to insure reliability.
2. Although petitioner concedes that the excited utterance
exception is a firmly rooted exception to the hearsay rule (Pet. 9),
he maintains that his daughter's excited utterance lacked sufficient
indicia of reliability to satisfy the Confrontation Clause. That
claim lacks merit. As this Court explained in Bourjaily v. United
States, No. 85-6725 (June 23, 1987), slip op. 10 (citation omitted),
"Roberts itself limits the requirement that a court make a separate
inquiry into the reliability of an out-of-court statement. * * * (N)o
independent inquiry into reliability is required when the evidence
'falls within a firmly rooted hearsay exception.'" In any event, even
if the trial court was required to determine whether Charise's
statements to her school counselor were trustworthy, petitioner's own
confession provided powerful corroboration of his daughter's
statements. Moreover, the evidence that Charise had suffered some
psychological trauma, along with the impulsive, nondeliberative nature
of her statements, also tends to show that the statements were
reliable. Finally, there was no evidence that Charise had any motive
to fabricate her accusations. Under these circumstances, Charise's
statements to her school counselor were sufficiently reliable to
justify their admission even though she was not present at trial.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
CHARLES FRIED
Solicitor General
NORMAN G. COOPER
Col., JAGC, USA
GARY F. ROBERSON
Lt. Col., JAGC, USA
GARY L. HAUSKEN
Capt., JAGC, USA
JOHN L. ROSS
Capt., JAGC, USA
DONALD W. HITZEMAN
Capt., JAGC, USA Appellate Government Counsel Government
Appellate Division United States Army Legal Services Agency
JANUARY 1988
/1/ Petitioner recanted his confession at trial (Tr. 240-243).
/2/ Under military law, a defendant's confession may be considered
as evidence of his guilt only if independent evidence, direct or
circumstantial, sufficiently corroborates the essential facts of the
confession to justify an inference that it is truthful. Mil. R. Evid.
304(g).
/3/ Judge Cox noted that Charise lived at home during the period
prior to the trial and that "(t)heoretically, the lapse of time
between the date of the incident and the trial was sufficient to
permit this young girl to be pressured in various ways not to testify"
(Pet. App. 8a n.4). In fact, the prosecutor represented to the trial
judge on the morning of trial that he could not find Charise even
after checking her home and school (Tr. 102; see also Tr. 142-144).
/4/ Mil. R. Evid. 803(2) was adopted without change from the
Federal Rules of Evidence.
/5/ The lapse of time between the crime and Charise's statements,
"although relevant(,) is not dispositive" of the question whether her
statements fit within the excited utterance exception to the hearsay
rule. United States v. Iron Shell, 633 F.2d 77, 85 (8th Cir. 1980),
cert. denied, 450 U.S. 1001 (1981).
/6/ The courts of appeals have agreed that the excited utterance
exception is firmly rooted in the common law. Puleio v. Vose, 830
F.2d 1197, 1205-1206 (1st Cir. 1987) (citing a long history of cases
over the past 200 years approving the excited utterance exception);
United States v. Moore, 791 F.2d 566, 574 (7th Cir. 1986); Haggins v.
Warden, 715 F.2d 1050 (6th Cir. 1983), cert. denied, 464 U.S. 1071
(1984); McLaughlin v. Vinzant, 522 F.2d 448, 450 (1st Cir.), cert.
denied, 423 U.S. 1037 (1975); see also United States v. Cree, 778
F.2d 474, 502 (8th Cir. 1985) (Oliver, J., dissenting).
/7/ "The decisions of this Court make it clear that the mission of
the Confrontation Clause is to advance a practical concern for the
accuracy of the truth-determining process" (Dutton v. Evans, 400 U.S.
74, 89 (1970) (plurality opinion)). See also Tennessee v. Street, 471
U.S. 409, 415 (1985); Roberts, 448 U.S. at 66.